With increasing efforts under way to ensure the long-term
unemployed aren't discriminated against, employers would be wise to stay 10
strokes ahead of the wave.

By Kristen B. Frasch

Wednesday, March 26, 2014

With
momentum picking up nationwide in the quest to eradicate discrimination against
the long-term unemployed, employers are being advised to take the necessary
steps to make sure they're on the right side of the issue, and the law.

The
latest call to arms in this war against such discrimination came Feb. 19, when
the U.S. Department of Labor announced the availability of about $150 million
in grants to prepare and place those facing long-term unemployment into jobs.
About 20 to 30 grants ranging from $3 million to $10 million would be awarded
to programs focused on individual counseling, job-placement assistance and
work-based training that facilitate hiring for jobs in which employers
currently use foreign workers on H-1B visas.

"These
grants are part of President Obama's call to action to help ensure that America
continues to be a magnet for middle-class jobs and business investment,"
said U.S. Secretary of Labor Thomas E. Perez at the time. "We need to do
everything we can to help employers expand and grow while, at the same time,
remembering that those who have been out of work through no fault of their own
deserve a fair shot."

Earlier, in his Jan.
28 State of the Union address, Obama also made a reference to the long-term
unemployed deserving a "fair shot" at being considered eligible for
open jobs when he announced he and Vice President Joe Biden would be meeting at
the White House with employers the following Friday to start working together
to tackle the problem.

At
that meeting, Obama announced best-practice guidelines for employers to follow,
including making sure job advertisements do not discourage or discriminate
against the long-term unemployed and hiring practices be changed so they are no
longer disadvantaged simply because they are out of work.

"We've
got to get these folks back in the game," Obama said at the meeting.
"It's a cruel Catch-22. The longer you're unemployed, the more
unemployable you may seem."

White
House officials told the New York Times later that about 300 businesses,
including 21 of the nation's 50 largest companies and 47 of the top 200, had
agreed to draft up new hiring policies that ensure applicants who have not
worked in a long time are not unfairly screened out.

If
pressure to cease and desist such discrimination isn't enough coming from
Washington, consider that 10 states -- Florida, Hawaii, Iowa, Maine,
Massachusetts, Minnesota, New Hampshire, New York, Pennsylvania and Virginia --
are mulling legislation proposed in 2013 to make such practices illegal.
Consider, too, that New Jersey, Oregon and the District of Columbia already
have such laws on their books.

Indeed,
the stage is set for many different laws to be governing different states and
it will be up to employers, their hiring managers and their HR leaders to be
well-versed in all the states where their organizations do business.

Will
every state have its own anti-long-term-unemployment law one day soon? James
Boyan, an employment law attorney with Pashman Stein in Hackensack, N.J.,
thinks not. "There are states active in this and states that aren't as
active in this," he says.

Still,
he adds, "[employers] want to be on the right side of this issue going
forward [with such] momentum going on to pass more of these laws."

What's
more, says Boyan, actively working to avoid discrimination against the
long-term unemployed "is also part of being a good corporate
citizen."

"Think
about it; it's to U.S. employers' advantage [not to discriminate] because it's
going to help the economy, help personal incomes and spending behaviors in
general," he says. "The discriminating employer is potentially
contributing to the economy's inability to really recover quickly."

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More
importantly, as Peter Cappelli -- HREOnline™'s talent
management columnist, and professor and director of the Center for Human
Resources at the University of Pennsylvania's Wharton School, wrote in an
August 2011 column, "wouldn't unemployed candidates be more grateful for a
job, more motivated to perform well and more likely to work cheaper? That alone
should make them worth considering."

How
rampant is this discrimination a few years later? In a more recent -- March
2013 -- column, Cappelli notes that, even though the unemployment rate is
coming down, the ranks of the long-term unemployed – more than 26 weeks out of
work – has barely changed because only those actively looking for a new job can
be considered unemployed. Boyan agrees it's hard to guess in actual numbers,
but he would not imagine many large employers out there (with adequate legal
counsel) that have bright-line rules or policies in place not to hire people
with these long gaps in their employment histories. Yet it's also hard to
always see and prove, like every other form of discrimination.

As
Cappelli writes in his earlier column, "the extent to which employers who
do not explicitly prohibit unemployed individuals from applying, but
nevertheless screen them out after they've applied, is unknown – but a
reasonable guess is that the latter is much more common than the former."

"Refusing
to consider unemployed job applicants doesn't seem like a smart idea,"
Cappelli writes, "but organizations do many things that don't make sense.
That doesn't necessarily suggest that we should prohibit every silly thing they
do.

"Where
it starts to get tricky," he continues, "is when the actions of
employers spill over to affect stakeholders other than their shareholders. This
is certainly one of those cases. Is it egregious enough to merit legislative
prohibition? I guess we'll find out."